Tag Archive for FOI

A new FOI Code for Christmas

FOIMan takes a look at the government’s long-awaited draft FOI section 45 Code of Practice.

A long, long time ago, in a galaxy far, far away, before BREXIT, before the last General Election, you may recall that the Government, which was apparently led by some guy called Cameron, set up a Commission to make recommendations on FOI. If you’ve forgotten that, you almost certainly won’t remember that the government responded to the outcome of the Commission with a promise to update the s45 Code of Practice. The Code is required under (you’ve probably guessed) s.45 of the Act. The existing Code was written in 2004 (some bloke called Blair was in charge then, but nobody remembers him), and is, frankly, about as much use as a chocolate teapot (and rather less satisfying to consume).

Since March 2016, when the government made this promise, there have been wars and rumours of wars. In December 2016, the Information Commissioner reported at an FOI event that she’d heard a draft would be released in the new year. Notably, she didn’t indicate which one.

But now here we are. Last week, the Cabinet Office quietly published a new draft Code and consultation paper. So what does this new Code look like?

I’ve only had chance to quickly peruse it, but some observations. Overall, it is a welcome move to a practical guide for public authorities on fulfilling their FOI obligations. It actually addresses many of the crucial questions that arise for practitioners – it is helpful.

That said, there are a few things that leapt out at me.

The first section deals with the making of requests – what’s a valid request, how to carry out searches, that sort of thing. There is an attempt to define what should be treated as an FOI request which seems a missed opportunity. Apparently it is an FOI request unless it is asking for personal data, environmental information or “information given out as part of routine business”. Given that, as we’ll see, the Code calls for authorities to report on numbers of requests received, it would be useful for it to define more precisely which requests ought to be logged, monitored and reported on. I’m not convinced this definition is precise enough for that.

There is a degree of wish fulfilment on display. Information that has been deleted but remains on back-ups is not held, says the Code, in direct contradiction of multiple Tribunal decisions. Requests made in a foreign language will not be valid requests, it claims, which may be a practical reality for the most part (since it would be impossible to know whether or not it was a request in many circumstances), but it would be interesting to know what legal basis there is for this stark statement. (I may well have missed a relevant decision, so please do let me know if I have).

Sections 4 and 5 make clear (as per the Commission’s recommendations) that public interest extensions and internal reviews should normally be limited to 20 working days. Applicants’ complaints can be ignored if submitted later than 40 working days after the response is sent out. The section on internal reviews is particularly welcome given that the Act, of course, doesn’t require a review, so the Code is really the only way to establish a common approach.

There are some useful chapters on vexatious requests and the cost limit, effectively just articulating the approach taken by the Tribunals over the last few years, but nonetheless welcome.

The really interesting developments are in section 8, on publication schemes (no, really). The Code follows the Commission’s recommendations that public authorities with over 100 FTE employees should publish statistics on FOI compliance – numbers received, numbers answered in 20 days, numbers refused, numbers granted, and numbers of internal reviews. It recommends that these be published quarterly. It also calls for senior pay, expenses and “payments in kind” to be reported on.

The next section deals with the controversial matter of outsourced public services. It makes some sensible recommendations, though I doubt this will silence calls for companies delivering such services to be made subject to FOI.

Finally, the datasets Code, now of limited use since the arrival of the Re-use of Public Sector Information Regulations, is now subsumed within the main s45 Code.

The tone of the language in the Code I think does betray the Cabinet Office’s lack of enthusiasm for FOI. However, the approach taken isn’t entirely a bad thing – a clear no-nonsense guide like this is long overdue. One of the common criticisms of FOI is that it is too vague and unclear – this helps address that.

In any case, if you agree or disagree, now’s your chance to say so. The consultation on this draft is open until 2 February so if you have any views on the draft Code, make sure you submit them before then.

WhatDoTheyKnow About Refusing Requests?

FOIMan reviews refusal notices issued via the WhatDoTheyKnow.com website.

FOI is all about transparency. Most of the time that is demonstrated by disclosing requested information. On occasion though, public authorities have to refuse requests, and where this is the case, transparency should extend to the reasons why the requested information cannot be disclosed.

The Act itself (and the Environmental Information Regulations as well) sets out the requirement to issue a notice explaining the refusal and what must be included in it. Not surprisingly, the Information Commissioner has provided guidance over the years on how this obligation ought to be met as well.

Public authorities should therefore have a pretty clear idea of what to tell applicants when they refuse requests. Well, perhaps…

In my latest article for PDP’s FOI Journal, I examine 250 responses to requests made via the WhatDoTheyKnow.com website. Unfortunately I find that many responses leave a lot to be desired. You can read the article here.

Local Authority Meetings & Secrecy

FOIMan clarifies the relationship between FOI and local authority meeting rules.

Following the awful tragedy that unfolded at Grenfell Tower, there have been a lot of questions asked of the local council, the Royal Borough of Kensington and Chelsea (RBKC). Yesterday (29 June 2017) the council held a Cabinet meeting which began and ended in controversial circumstances. I was subsequently asked by a follower on Twitter about the relationship between FOI and attendance at council meetings.

The short answer is that there is none. FOI gives a right of access to information held by public authorities. It doesn’t regulate access to meetings.

The longer and more helpful answer is that FOI forms part of a range of legal requirements that ensure that local authorities like RBKC are accountable. I’ve written previously about transparency rules in local government. In relation to meetings of the RBKC cabinet, the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 are, I believe, the relevant rules. I won’t go into whether RBKC were entitled to exclude the media from the meeting in this case as a) I don’t claim to be an expert in this area, and b) it’s already been dealt with by a legal ruling which ruled that the Press had to be admitted. But if you’re interested in what the rules are, the regulations I mention above may be of interest to you.

From my point of view, one of the most interesting issues is that RBKC are the latest organisation to discover that the perception of secrecy can be just as damaging, if not more so, as the revelation of embarrassing information (interestingly a theme explored by Dr Ben Worthy in his recent book on The Politics of FOI, which I thoroughly recommend). As one MP in their maiden speech said:

The public has the right…to know what its elected representatives are doing…Publicity is the greatest and most effective check against any arbitrary action.

The MP was Margaret Thatcher, and she said this in 1960 in support of a Bill to allow the Press to attend council meetings.

(HT to Alan Travis of The Guardian – @alantravis40 – for providing the quote above from Hansard in a Tweet yesterday)

Same thing, different gravy? The EIRs Part II

FOIMan examines the similarities and differences between FOIA and the Environmental Information Regulations.

A few months ago I started a series in PDP’s Freedom of Information Journal on the Environmental Information Regulations (EIRs), starting with an examination of the definition of environmental information. Here I bring you the second instalment in the series which looks at how FOIA and the EIRs differ.

I’ve just written the third and final part in the series which covers the exceptions in the EIRs. You’ll be able to read that in the next issue of the journal or right here on the FOIMan site later in the summer. Once they’re all available, I’ll put them all in one place in the Resources section so they will act as a comprehensive guide to the EIRs.

University FOI Stats 2016

FOIMan reviews JISC’s latest report on FOI in higher education.

There aren’t that many sources of information on FOI performance. Central government of course publishes statistics on its own compliance, but outside of Whitehall, the availability of statistics on how public bodies apply FOI is ironically pretty limited. If you want to know more about sources for FOI statistics, I wrote about it for the FOI Journal last year. One of the sectors that does publish information every year is the higher education sector.

Every year, JISC, the higher education information and research body, conducts a survey of universities on their experiences with FOI, EIR and data protection subject access requests. The data is collated into handy charts which are made available online and can be downloaded in reusable form for further number crunching. It always provides quite a detailed insight into FOI handling and this year’s is no different.

Amongst the highlights of this year’s report:

  • universities received an average of 264 requests (mostly – 232 – FOI requests) in 2016 – after a drop last year, requests were up 10%;
  • 51% of requests were granted in full – 17% were partly fulfilled;
  • only 9% were fully withheld due to exemptions;
  • most requests (27%) were about “student issues”;
  • journalists were the most common type of requester – 23% (though it should be noted that 22% of requesters were not identified);
  • only 4% were not answered within 20 working days;
  • the most time-consuming parts of handling an FOI request were “locating and accessing information”, “reviewing information” and “considering exemptions”.

We have to remember that these figures are self-reported and the survey is voluntary – many universities didn’t report at all. However, what we do have is some very useful data on how FOI is working in these public bodies.

Although JISC introduce the report by commenting that the rise in FOI requests represents a “seven-fold increase” since reporting began in 2005, it should be noted that this started from a very low base. Most local authorities would kill to have FOI request rates as low as 232.

Despite the common complaint about FOI requests from IT companies trying to get hold of procurement intelligence, only 7% of requests are about procurement (though its possible these requests were counted in the 9% of requests about IT provision). Only 13% of requests are recorded as coming from “commercial organisations”.

A note on use of exemptions. There was quite a bit of commentary when the Institute for Government published a report last month suggesting that the government’s stats indicated that government departments were becoming less open as they were using more exemptions, and failing to meet deadlines more often. There’s nothing to suggest this is a problem in Higher Education in JISC’s stats, and in any case I’m not at all sure that you can make that conclusion from raw statistics. After 12 years of FOI, it may just be that government departments have already disclosed all the “low-hanging fruit”, and that what remains now are the difficult cases that are more likely to be refused or take longer to answer. What’s really needed if we want to understand changing attitudes to FOI in public bodies is research involving a qualitative analysis of the types of requests being refused – are they the ones that would have been answered in the early days of FOI? Or are the questions being asked more challenging these days? One for the academics in our higher education institutions. Statistics are helpful, but they only provide part of the picture.

If public authorities want tips on how to improve their performance under FOI, just a reminder that you can join me for one of my training courses on FOI for Act Now Training, starting with an intensive look at the FOI Exemptions on 24 April in London. Details on the Act Now Training website.